United States: Prohibitions against and sanctions imposed for homosexual and heterosexual acts in United States armed forces

The relevant legal sources for information concerning offences and penalties for persons serving in the United States armed forces are the United States Code, Title 10, provisions from the United States Code of Federal Regulations and the Manual for Courts-Martial. The latter document provides the greatest detail and is available online at >.

There are a number of prohibitions related to sexual acts contained in the Manual for Courts-Martial. Many of these come within Article 134, paragraph 60, a general paragraph that states:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

Offences based upon sexual acts that are specifically mentioned within Article 134 include: Adultery (paragraph 62, maximum punishment: dishonourable discharge, forfeiture of all pay and allowances, and confinement for one year); Indecent Assault (paragraph 63, maximum punishment: dishonourable discharge, forfeiture of all pay and allowances, and confinement for five years); Wrongful Cohabitation (paragraph 69, maximum punishment: confinement for four months and forfeiture of two-thirds pay per month for four months); Indecent Acts or Liberties with a Child (paragraph 87, maximum punishment: dishonourable discharge, forfeiture of all pay and allowances, and confinement for seven years); Indecent Exposure (paragraph 88, maximum punishment: bad conduct discharge, forfeiture of all pay and allowances, and confinement for six months); and Indecent Acts with Another (paragraph 90, dishonourable discharge, forfeiture of all pay and allowances, and confinement for five years). With respect to the latter provisions, indecent is defined as "that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations."

Separately included in Article 120, paragraph 45, are the offences of Rape and Carnal Knowledge (statutory rape), the maximum punishments for which are, in the case of rape, death or such other punishment as a court-martial may direct; in the case of carnal knowledge of a child 12 years or older, dishonourable discharge, forfeiture of all pay and allowances, and confinement for twenty years; and, in the case of carnal knowledge of a child less than 12 years old, dishonourable discharge, forfeiture of all pay and allowances, and confinement for life.

Also separately included, in Article 125, paragraph 51, is the offence of Sodomy. Sodomy is defined as "unnatural carnal copulation" and includes oral and anal sex with another person and bestiality. The maximum punishments for sodomy depend upon the circumstances of the offence: where it is by force and without consent the maximum punishment is a dishonourable discharge, forfeiture of all pay and allowances, and confinement for life; where it is with a child over 12 years of age but less than 16 years of age, the maximum punishment is a dishonourable discharge, forfeiture of all pay and allowances, and confinement for twenty years; where it is with a child under the age of 12, the maximum punishment is a dishonourable discharge, forfeiture of all pay and allowances, and confinement for life; in all other cases, the maximum punishment is a dishonourable discharge, forfeiture of all pay and allowances, and confinement for five years.

Another provision based in part upon sexual acts is Article 133, paragraph 59, Conduct Unbecoming an Officer and Gentleman, which includes "public association with known prostitutes."

Beyond the prohibitions referred to above, the United States Code of Federal Regulations, Title 32, Part 41, Appendix A, Part 1, Section H, states that homosexuality provides a basis for separation (discharge) from military service. A homosexual act is defined as "bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires." The discharge will be an honourable discharge unless there is a finding that the person attempted, committed or solicited a homosexual act either: by force; with a person under 16 years of age; with a subordinate in circumstances that violate military superior-subordinate relationships; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control under aggravating circumstances having an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Response.

References

United States. Manual for Courts-Martial. January 1998. [Internet] [Accessed 2 July 1999]

United States. Code of Federal Regulations. 10 April 1999. [Internet] [Accessed 17 June 1999].

Additional Source Consulted

Judge Advocate Division, United States Marine Corps, Washington, DC. 2 July 1999. Telephone interview with staffperson.